A lot of Indians think that democracy in still alive in the country thanks to the judiciary. The truth is that there are only three really independent institutions left: The judiciary, Election Commission and Comptroller and Auditor-General of India. Among them, the judiciary is proving to be the most consistent defender of democratic principles and the rule of law enshrined in the Constitution.
India’s Supreme Court has just struck down the illegal imposition of President’s Rule in Congress Party-run Uttarakhand state by the Bharatiya Janata Party (BJP) central government. And in Maharashtra, the Bombay High Court revoked a new law framed by the BJP banning the sale or consumption of beef in the western province. And the lifting of the beef ban was preceded by another landmark judgment freeing nine Muslims jailed for the Malegaon terrorist strike, which was actually executed by Hindu extremists.
The cases I have cited might create the impression BJP alone is responsible for all the wrongs that the courts are undoing without fail. Far from it, many Congress politicians and ministers have been packed off to jail for corruption or misuse of power. Technically, Sonia Gandhi and Rahul Gandhi are on bail in the National Herald case, which is now an albatross around their neck.
Judges, for that matter, haven’t spared Bollywood actors, media personalities, sports stars or bureaucrats. And one of India’s richest men — Subrata Roy — who owns Sahara Group, languished in prison since 2014 for failing to comply with a court order to refund money illegally raised from millions of small investors, before he was granted parole this week to perform his mother’s funeral rites.
A dangerous development is the BJP’s concerted attempts to undermine the courts so that it can do what it wants and get away with it. The ruling party’s determination to emasculate the judiciary is even more evident after the apex court stood by Uttarakhand’s Congress Chief Minister Harish Rawat who was toppled by the BJP central government for its own political advantage by misusing Article 356.
Before dethroning Rawat citing his “loss of majority,” Prime Minister Narendra Modi’s government had removed the Congress Party-led state government in Arunachal Pradesh. Denying any political motive for dismissing Rawat, Arun Jaitley — Modi’s alter ego and powerful Finance Minister — had said that Uttarakhand was as a “text-book case” for enforcing President’s Rule. “I believe there cannot be a better example,” Jaitley smugly insisted in Parliament.
To the BJP’s and Jaitley’s horror, the Supreme Court ordered a test of strength on the floor of the Uttarakhand legislative assembly in which Rawat easily proved his majority! Rawat’s reinstatement as chief minister virtually by the judiciary has resulted in a big loss of face for the Modi government, particularly Jaitley and BJP President Amit Shah.
Jaitley’s anger at the Supreme Court is evident from his frontal assault on the judiciary within hours of Justice Deepak Misra and Justice Shiva Kirti Singh putting Rawat back in the saddle in Uttarakhand. Speaking in the Rajya Sabha on the stalled Goods and Services Tax Bill, Jaitley gave vent to his fury, declaring that “the judiciary is destroying the legislature brick by brick.” He complained bitterly that judges are encroaching on legislative and executive authority.
Jaitley’s fulmination fits in with his overall stand vis-à-vis the judiciary. Last year, the Parliament toyed with the National Judicial Appointments Commission Act to curb the judiciary’s independence but the Supreme Court immediately hit back. It struck down the very constitutional amendment, which facilitated the NJAC Act.
Jaitley didn’t mince his words while criticizing the apex court judgment striking down the constitutional amendment. He pointed out that “to uphold one basic feature of the Constitution — an independent judiciary — the judgment has sought to weaken five others: An elected Parliament, an elected government, an elected council of ministers, an elected prime minister, and an elected leader of the Opposition,” concluding that democracy cannot be a “tyranny of the unelected” — or judges.
The judiciary has held its ground so far refusing to cave in to pressure exerted by the two other arms of the government: Legislature and judiciary. Its preference for the traditional collegium system for selecting judges, as opposed to the NJAC Act, is rooted in constitutional values. Tampering with them amount to fiddling with the rule of law itself.